Legislation impacting guardianship cases in Pennsylvania takes effect tomorrow, June 11, so practitioners operating in this realm and those serving as guardians across the Commonwealth should make themselves aware of the changes if they have not already done so.

Act 61 of 2023 (Senate Bill 506; PN 843) (“Act 61”) amends Title 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated Statutes. On the Senate floor, Sen. Lisa Baker (R-Luzerne) recognized that its adoption was an effective way to strengthen and protect vulnerable citizens. Sen. Art Haywood (D-Montgomery) further commented that Act 61 was “critical legislation” designed to protect the most vulnerable in the Commonwealth.

Although these changes may seem daunting to navigate when Act 61 takes effect tomorrow, it is clear that our legislators’ underlying intentions in making the changes are to protect those that are among the most vulnerable in our society.

Requirement of counsel for the Alleged Incapacitated Person and the meaning and role of counsel
Act 61 amends Section 5511 of Title 20 to now require the appointment of counsel for the alleged incapacitated person (where none has been retained) in all guardianship proceedings, including those to consider, modify, or terminate a guardianship. While some courts have appointed counsel for the alleged incapacitated person in the past, courts will now be required to make such an appointment.

In the past, where counsel has been appointed, it was uncertain whether the role of that counsel was to serve as an advocate for their client’s expressed wishes or, given the alleged incapacity, to serve in more of a guardian ad litem role and make recommendations to the court as to their client’s best interests. Act 61 now makes clear that court-appointed counsel is to argue for their client’s expressed wishes, thereby serving as an advocate rather than substituting counsel’s own judgment.

Retained or appointed counsel may not act as guardian ad litem for the alleged incapacitated person. However, Act 61 does leave the option open for the court to make a separate appointment of a guardian ad litem if it determines it is necessary. It is unclear whether such a requirement will place a substantial burden on the county or the state to fund these court appointments, or what practitioners will be asked to serve in this role. Counsel who are appointed will be wise to consider scope of engagement and when counsel’s role will end. Moreover, when addressing less restrictive alternatives (see below), counsel for the petitioner must carefully negotiate fact finding and consider less restrictive alternatives without creating ethical conflicts.

Petitions to include specific facts regarding less restrictive alternatives
While guardianship proceedings and necessary findings of fact for the judge have always included considerations of “less restrictive alternatives” to a plenary guardianship, Act 61 now requires at the outset that the petitioner include specific facts about less restrictive alternatives in the guardianship petition.

Section 5511(e) now places the onus on the petitioner to plead and prove that no less restrictive alternatives to the guardianship exist. Specifically, “Petitions must allege specific facts demonstrating that less restrictive alternatives were considered or tried and why the alternatives are unavailable or insufficient.”

Finally, Act 61 enumerates a list of non-exhaustive less restrictive alternative measures that should be considered before turning to a guardianship. As noted above, petitioner’s counsel must be careful when investigating and advising on less restrictive alternatives in order to avoid conflicts of interest and to remain within the scope of representing petitioner and not the alleged incapacitated person (“AIP”). Appointment of an advocate for the AIP will assist in the avoidance of conflicts.

Court’s required findings of fact in appointing a guardian
Act 61 also requires the court to make some additional findings of fact before ordering a guardianship. The Act now requires not only that the petitioner plead and prove the non-existence of less restrictive alternatives, but that the judge make specific findings regarding less restrictive alternatives to the requested guardianship. Additionally, the judge is now required to make findings regarding the absence of sufficient family, friends, or other supports available to the alleged incapacitated person.

Specifically, Act 61 requires that the court shall make specific findings of fact based on the evidentiary record of the absence of sufficient family, friends, or other supports and of the insufficiency of each less restrictive alternative before ordering guardianship. Therefore, not only should the petitioner be considering less restrictive alternatives and informal supports before turning to guardianship and in its initial petition, but the petitioner should be more deliberate in discussing them during its presentation at the hearing and include them specifically in the proposed findings of fact and proposed order directed to the court for its consideration.

Not only does Act 61 set forth new requirements for the court’s findings of fact, but it states that the court shall prefer less restrictive alternatives and that the court may not appoint a guardian if a lesser restrictive alternative exists that is sufficient to support the needs of an incapacitated person. The determination of incapacity alone is not enough to justify the appointment of a guardian. When denying the appointment of a guardian, the court should note the less restrictive alternatives that are in place to protect the alleged incapacitated person. In doing so, even an order denying the requested guardianship may be illustrative to third parties, including medical providers, as to who the medical decision-maker is and how to organize the person’s care, treatment, and services. It is unknown whether the findings of fact will be available to third parties or remain a confidential document.

Guardian certification requirements
Act 61 adds certification requirements for “individuals” seeking to be appointed as guardians of three (3) or more people. As we quickly approach Act 61’s date of effect, it remains unclear the extent to which the new certification requirement applies to professional guardianship agencies, fiduciary organizations serving as guardian, or employees of those entities.

The legislative history associated with this section of Act 61 certainly suggests that the changes were intended to cover professional guardianship agencies and fiduciaries, but the express language in the statute uses the word “individual,” creating what could be viewed as an ambiguity requiring additional guidance or legislative action. It is uncertain how courts will interpret this language across the Commonwealth or whether the legislators will provide further guidance on the issue. Practitioners and prospective and current guardians should be prepared to make arguments either way.

For the time being, we anticipate that arguments against the certification requirement would be more persuasive for large fiduciary companies employing many people across the Commonwealth, particularly those who are subject to extensive regulation already, and less persuasive for professional guardianship agencies employing only one or two people, and essentially acting through an “individual.”

Act 61 also provides that the certification requirement may be waived by a court upon a petition demonstrating that a proposed guardian has such equivalent licenses or certifications as are necessary to ensure that the proposed guardian is capable of fully, faithfully, and competently performing the obligations of a guardian. It makes clear that a license to practice law does not constitute such a license or certification.

There will likely be more action related to what the legislature intended with respect to certification of guardians who are protecting and serving the interests of three (3) or more persons. Guardianship certification is trending as an industry standard, and it is anticipated that certification requirements will be expanded in the days and months ahead. Guardianship agencies and other fiduciaries should consider gearing up for expanded certification requirements in the future.

Required review hearing when evidence suggests possible improvement
Act 61 now requires an automatic review hearing be held within a year where there is any evidence presented that indicates that the circumstances of the person’s incapacity may change. The added statutory language provides that the Court shall set a date for the automatic review hearing in the Order appointing the guardian. This section certainly seeks to protect an incapacitated person where the facts show they may regain capacity sometime in the future.

In addition to these new protective requirements, counties across the Commonwealth may want to consider employing a more robust guardianship monitoring program where they have not necessarily done so in the past and where such resources are available.

In summary, Act 61 is a bold and important step to protecting alleged incapacitated and incapacitated citizens of the Commonwealth. In addition to our unique Guardianship Tracking System (GTS), Pennsylvania is a national leader in the protection of vulnerable citizens. Act 61 is not perfect, and its provisions will likely be the subject of interpretation through the courts and the legislature. It is, however, a significant leap in the right direction.